Yoder v. Saul

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

VICKI LYNN YODER,

Plaintiff,

v. No. 19-00565-W- NKL-SSA

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant.

ORDER

Plaintiff Vicki Lynn Yoder seeks review of the decision by the Administrative Law Judge

(“ALJ”) that she was not disabled within the meaning of Title II of the Social Security Act, 42

U.S.C. 401 et. Seq. For the reasons set forth below, the Court affirms the ALJ’s decision.

I. BACKGROUND

On May 9, 2017, Yoder filed a Title II application for a period of disability and disability

insurance benefits beginning June 1, 2011. Tr. 135. Because Yoder had acquired sufficient

quarters of coverage to remain insured through June 30, 2018 (the “date last insured”), she would

qualify for disability and disability insurance benefits only if she were to establish disability on or

before that date. Id.; Doc. 10, p. 2. At the time of the application, Yoder was 60 years old. The

basis of Yoder’s claim was osteoarthritis, osteoporosis, degenerative bone disease, arthritis of the

hands, bilateral knee replacement, bone spurs in the neck, chronic pain, depression, headaches,

high blood pressure, and sleep apnea. Tr. 32. Yoder explained the basis for her disability claim

as follows: “The pain in my, in my back and neck and shoulders just have gotten to the point of

where the pain is just unbearable and so then I have trouble sleeping, which then causes a rough

day, you know, at work with lack of sleep.” Tr. 39.

From 2014 to 2016, Yoder had a job in production for 30 hours a week (which she

described as “full time”) for two years, bottling, packaging, and performing heavy lifting. Tr. 36.

She states that she stopped working because she experienced too much pain from standing “on

[her] feet all the time” and from performing “a lot of repetitious” work with her hands. Tr. 35.

While thus employed, she would sew, crochet, cross-stitch, or perform other craft work for two to

four hours daily. Tr. 894, 897. She continued to perform the handiwork through the date of the

hearing before the ALJ, though she testified that “it’s getting more difficult” to use her hands. Tr.

42.

Yoder testified that, until 2011, she worked at a bowling alley that she co-owns with her

husband. Tr. 37-38. She stated that it had been two years since she worked. Tr. 35. However,

her medical records show that, through at least August 2017, Yoder spent weekends cooking or

working the counter at the bowling alley. Tr. 972. In June 2018, Yoder’s medical care provider

noted that Yoder reported “difficult[y]” using a gel medication for her arthritis because of “many

daily tasks that require handwashing” Tr. 985.

At the time of the hearing, Yoder claimed to drive up to ten miles running errands. She

also assisted a disabled neighbor with performing errands as required. Tr. 63; Doc. 10, p. 26. She

has no issues using the stairs so long as she is not carrying anything. She can throw laundry in the

machine and fold it, does some cooking, uses an iPad regularly, and, as aforementioned, performs

some handiwork.

Yoder claims to have depression that results in three bad days a week, and she takes

medication for depression that her primary care physician prescribed. Tr. 44, 46. However,

medical records show that she denied having any “[d]ifficulty doing work, taking care of things at

home, or getting along with others.” Tr. 539 (May 2017), 666 (March 2015). She indicated that

she can pay attention as long as needed, finish what she starts, follow written and spoken

instructions, get along “very well” with authority figures, get along with friends and family, and,

though she does not handle stress well, she “gets through” changes in routine. Tr. 158-60.

The ALJ found that Yoder had the following severe impairments: cervical and lumbar

degenerative disc disease; lumbar spinal facet pain syndrome; mild bilateral hip degenerative joint

disease; osteoporosis; osteoarthritis of multiple joints, including the hands, feet, and bilateral hips,

and status-post bilateral knee replacements. Tr. 14. Nonetheless, the ALJ concluded that Yoder

had the residual functional capacity to perform the full range of light work as defined in 20 CFR

404.1567(b), meaning that she “could frequently lift up to 10 pounds, occasionally lift up to 20

pounds, stand and/or walk for up to 6 hours in an 8-hour workday, and sit for up to 6 hours in an

8-hour workday.” Tr. 16. The ALJ then concluded that Yoder was capable of performing past

relevant work, including as a bowling alley manager, and therefore was not disabled during the

relevant period. Tr. 19.

II. STANDARD

The Court must affirm the Commissioner’s denial of social security benefits so long as

“there was no legal error” and “the findings of fact are supported by substantial evidence on the

record as a whole.” Brown v. Colvin, 825 F.3d 936, 939 (8th Cir. 2016). “Substantial evidence is

less than a preponderance, but is enough so that a reasonable mind would find it adequate to

support the ALJ’s conclusion.” Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). The Court must

consider both “evidence that detracts from the Commissioner’s decision as well as evidence that

supports it.” Id. (quotation marks and citation omitted). However, “as long as substantial evidence

in the record supports the Commissioner’s decision, [the Court] may not reverse it because

substantial evidence also exists in the record that would have supported a contrary outcome, or

because [the Court] would have decided the case differently.” Andrews v. Colvin, 791 F.3d 923,

928 (8th Cir. 2015) (quotation marks and citation omitted).

The Court must “defer heavily to the findings and conclusions of the Social Security

Administration.” Michel v. Colvin, 640 F. App’x 585, 592 (8th Cir. 2016) (quotation marks and

citations omitted).

III. DISCUSSION

a. Whether the ALJ’s RFC as to Physical Limitations

Is Supported by Substantial Evidence

Yoder argues that the ALJ’s “selective adoption” at step four of portions of the opinion of

the non-examining, non-treating physician employed by the State was impermissible.

“Through step four of this analysis, the claimant has the burden of showing that she is

disabled.” Steed v. Astrue, 524 F.3d 872, 875 n.3 (8th Cir. 2008). Thus, the burden of “providing

medical evidence as to the existence and severity of an impairment” rests on the claimant. Kamann

v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013).

In assessing the RFC, an ALJ may “consider the claimant’s subjective statements about his

capabilities.” Mabry v. Colvin, 815 F.3d 386, 390 (8th Cir. 2016). However, “[b]ecause a

claimant’s RFC is a medical question, an ALJ’s assessment of it must be supported by some

medical evidence of the claimant’s ability to function in the workplace.” Id. (quotation marks and

citation omitted). Nonetheless, the RFC assessment “is ultimately an administrative determination

reserved to the Commissioner.’” Winn v. Comm’r of Soc. Sec. Admin, 894 F.3d 982, 987 (8th Cir.

2018) (quotation marks and citation omitted).

The ALJ’s RFC assessment was based in part on the opinion of Dr. Spence, a non-

examining, non-treating State agency physician. Dr. Spence opined that Yoder could lift and/or

carry 20 pounds occasionally, 10 pounds frequently, stand and/or walk and also sit for 6 hours in

an 8-hour workday. Tr. 59-60. The ALJ found these aspects of Dr. Spence’s opinion “persuasive.”

Tr. [19]. Dr. Spence also opined that Yoder could occasionally climb ramps/stairs, balance, stoop,

and crawl, but could never climb ladders/ropes/scaffolds, to “prevent symptom exacerbation and

possible injury . . . .” Tr. 60. Dr. Spence further opined that, although Yoder’s gross

manipulation/handling is “[u]nlimited,” her fingering in both hands is “[l]imited,” explaining that

the purpose of the latter limitation is “to prevent symptom exacerbation and possible injury.”

Finally, Dr. Spence opined that Yoder should “avoid concentrated exposure” to vibration, fumes,

odors, dust, gases, poor ventilation, and hazards like unprotected heights and machinery. Tr. 60-

61. The ALJ found these non-exertional limitations unpersuasive because they “are not supported

by and are inconsistent with the entire medical record and the treatment findings . . . , as well as

the claimant’s testimony and reports regarding her ability to perform numerous activities of daily

living.” The ALJ gave examples of the inconsistency between Dr. Spence’s opinion regarding

Yoder’s non-exertional limitations and her activities, stating that “the opinion of Dr. Spence

limiting the claimant to only occasional fingering is inconsistent with the type of work she

performed in 2014 through 2016, three to five years after the alleged onset date,” and noting that

Yoder “indicated she takes her neighbor to appointments and the store as needed, prepares all

meals, and continues to knit, crochet, and sew.” Tr. 19.

Yoder argues that “[t]he ALJ is not permitted to pick and choose [from] the opinions of

record, adopting only those portions which would support a finding of non-disability.” For this

proposition, Yoder cites from within the Eighth Circuit one district court decision, Taylor v.

Barnhart, 333 F. Supp. 2d 846 (E.D. Mo. 2004). However, the thrust of the Taylor opinion on this

point is not that an ALJ cannot rely on some aspects of a report while disregarding others, but

rather, that the ALJ’s explanation for rejecting some evidence “must be set out in the decision.”

Id. at 856 (quoting Jones v. Chater, 65 F.3d 102, 104 (8th Cir. 1995)). Here, the ALJ explained

that her decision to reject portions of Dr. Spence’s opinion was based on medical records, including

treatment findings, as well as testimony and documentation concerning Yoder’s daily activities.

Thus, the Taylor holding concerning failure to explain the decision to discount a medical opinion

does not apply.

Yoder next argues that the ALJ’s rationale for rejecting the postural and environmental

limitations cannot withstand scrutiny. First, Yoder argues that, according to the ALJ herself, the

“part-time” knitting, crocheting, and sewing Yoder performed between 2014 and 2016 did not rise

to the level of substantial gainful activity, citing the ALJ’s ruling that Yoder did not engage in

substantial gainful activity between June 1, 2011 and the date last insured, despite the fact that she

worked approximately 30 hours per week between September 1, 2014 and January 22, 2016.

However, the ALJ’s finding that Yoder did not engage in substantial gainful activity is not

inconsistent with the finding concerning her fingering limitations. The fact that Yoder did not

work a full-time job in the relevant period does not reflect in any way on her capacity for fingering.

The ALJ’s conclusion that Yoder’s 30-hours a week bottling, packaging, and lifting objects and

the additional hours she spent on handiwork each day undermined Dr. Spence’s opinion regarding

her capacity to finger was reasonable in light of the evidence in the record.

Yoder further argues that the “the ability to cross stitch and knit for 2 to 4 hours daily is

not inconsistent with Dr. Spence’s opinion Yoder could occasionally finger,” and that Dr. Spence

was aware of Yoder’s activities when he issued his opinion regarding her limitations, and therefore

the ALJ erred in disregarding Dr. Spence’s opinions because of Yoder’s activities. However, the

ALJ relied not only on the handiwork, but also on the fact that Yoder had worked 30 hours a week

in a production job for approximately two years. Tr. 19. Yoder argues that the work Yoder

performed was just part-time, and therefore does not undermine Dr. Spence’s limitation to

occasional fingering. However, the fact that Yoder performed a production job for 30 hours a

week (work that Yoder characterized in the hearing as “full time,” Tr. 36), in combination with

Yoder’s reports of two to four hours of handiwork daily (Tr. 894, 897), is substantial evidence that

Yoder could do more than occasional fingering. See Henderson v. Colvin, No. C15-0081-CJW,

2016 WL 4599920, at *13 (N.D. Iowa Sept. 2, 2016) (finding that substantial evidence supported

ALJ’s finding that that claimant was able to frequently bilaterally handle and finger where she

would dust, sweep, fix lunch, do dishes daily, shop weekly, pay bills, count change, “work on

sewing and mak[e] bracelets” and also paint or draw daily “depending on hand and finger pains”).

The record also shows that Yoder plays games on an iPad “throughout the day” and

“occasionally . . . assist[s] a mentally challenged individual by providing transportation” to

medical appointments or to a grocery store. Tr. 211. As late as June 2017, she had multiple “busy

weekend[s] at the bowling alley . . . .” Tr. 910, 914, 918; see also Tr 912 (“Patient has busy

weekend ahead of her at bowling alley.”). In August 2017, even as she complained of joint pain

and swelling, she told her medical care providers that “[s]he owns a bowling alley with her husband

and she does a lot of work with cooking and at the counter.” Tr. 972; see Browning v. Sullivan,

958 F.2d 817, 821 (8th Cir. 1992) (affirming ALJ’s decision that claimant who “worked for several

years despite complaining of the pain she now claims is disabling” could perform past relevant

work).

While she reported “morning stiffness lasting for > 2 hours” in June 2018, the bilateral

osteoarthritis was characterized as “mild.” Tr. 983-985. She discontinued gel medication for pain

at that time because of “many daily tasks that require handwashing” (Tr. 985)—which suggests

that she was working with her hands regularly. Thus, substantial evidence supports the ALJ’s

conclusion that Yoder was capable of performing work as a manager at least.

Yoder argues in the alternative that, after rejecting Dr. Spence’s opinions, “the ALJ should

have fulfilled her duty to develop the record fully and fairly and obtained some medical opinion

from an examining or treating physician as to Yoder’s functional limitations rather than relying on

his own interpretation of the medical evidence.” Doc. 10, p. 27. However, the Eighth Circuit has

expressly held that “there is no requirement that an RFC finding be supported by a specific medical

opinion.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). The ALJ’s decision regarding the

RFC was rendered at step four of the sequential evaluation process, where the burden was on

Yoder to establish an inability to do past relevant work, and the ALJ was permitted to rely on a

non-treating physician’s report alone. See Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007)

(noting that Eighth Circuit case law “does not preclude the ALJ’s reliance on a reviewing

physician’s report at step four when the burden is on the claimant to establish an inability to do

past relevant work”).

The decisions that Yoder cites in support of her argument to the contrary do not warrant

reversal. Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000), concerned the ALJ’s task at step five,

when the burden shifts to the Commissioner. See id. at 857 (“In our circuit it is well settled law

that once a claimant demonstrates that he or she is unable to do past relevant work, the burden of

proof shifts to the Commissioner to prove, first that the claimant retains the residual functional

capacity to do other kinds of work, and, second that other work exists in substantial numbers in

the national economy that the claimant is able to do. It is also well settled law that it is the duty of

the ALJ to fully and fairly develop the record, even when, as in this case, the claimant is

represented by counsel.”) (quotation marks and citations omitted). In Combs v. Berryhill, 878 F.3d

642 (8th Cir. 2017), the Eighth Circuit found that the ALJ erred in interpreting ambiguous language

in treatment records so as to conclude that the claimant was not disabled. See id. at 647 (“Although

Combs’ medical providers consistently note in their treatment records that Combs has a normal

range of motion, they likewise consistently diagnose her with rheumatoid arthritis, prescribe

medications for ‘severe pain,’ and note ‘trigger point’ and ‘joint pain with’ range of motion. By

relying on his own interpretation of what ‘no acute distress’ and ‘normal movement of all

extremities’ meant in terms of Combs’ RFC, the ALJ failed to satisfy his duty to fully and fairly

develop the record.”).

In both Spackman v. Colvin, No. 14-CV-4125-NKL, 2015 WL 518564, at *4 (W.D. Mo.

Feb. 9, 2015), and Burchard v. Astrue, No. 08CV87SNLJ/LMB, 2009 WL 2836531, at *10 (E.D.

Mo. Aug. 28, 2009), the ALJ had found that the claimant was disabled at step five of the sequential

evaluation process, where the burden of proof shifts to the commissioner, and not at step four,

where the burden remains with the claimant. Moreover, in Spackman, the Court required the ALJ

to acquire additional medical opinions concerning the claimant’s functional capacity because the

medical evidence in the record was “inconclusive.” Spackman, 2015 WL 518564, at *4.1 Here,

in contrast, the ALJ’s RFC assessment was based on evidence concerning Yoder’s daily activities,

including her work at the bowling alley, as well as medical evidence—not just portions of Dr.

Spence’s opinion, but also the treatment records, which showed that many of Yoder’s symptoms

improved with treatment. Tr. 17-19. See Hensley, 628 F.3d at 995 (“In the absence of medical

1 The decisions in Spackman, 2015 WL 518564, at **2–4, and Burchard, 2009 WL 2836531, at

**16–17, are distinguishable for the additional reason that the ALJ in those cases discounted the

opinions of the treating physicians in their entirety, leaving insufficient evidence to support the

RFC assessment. Here, in contrast, Yoder, who bore the burden of establishing disability at step

four, did not present any treating physicians’ opinions concerning her capacity to work. The only

medical opinion in the record regarding Yoder’s physical limitations was that of Dr. Spence, and

the ALJ relied on it in part in assessing Yoder’s RFC.

opinion evidence, medical records prepared by the most relevant treating physicians can provide

affirmative medical evidence supporting the ALJ’s residual functional capacity findings.”)

(quotation marks and citation omitted).

Yoder argues that her conditions deteriorated after Dr. Spence issued his opinion, so that,

“while on 2/1/16 Yoder continued to cross stitch and knit for 2-4 hours daily, by 5/8/17, she could

no longer perform these activities on a daily basis.” Doc. 10, p. 26 (citations omitted). However,

as an initial matter, such an argument cannot rescue Yoder’s claim for the period preceding May

2017. Moreover, Yoder’s statement in her application that she could do crafts, knitting, crocheting,

and sewing just one or two times a week (Tr. 158), and her husband’s contradictory statement that

she could do “[n]o sewing, knitting, painting, clay making, etc.,” are undercut by the evidence,

discussed above, that she was having “busy weekend[s] at the bowling alley,” “cooking” and

working “at the counter” through at least June 2017 and performing multiple tasks requiring hand

washing in June 2018. Given that the burden of proving disability was on Yoder, her arguments

do not warrant reversing the ALJ’s assessment of Yoder’s RFC.

b. Whether the ALJ‘s RFC as to Yoder’s Mental Impairments Is Supported by

Substantial Evidence

Yoder argues that the ALJ erred in failing to include her findings regarding Yoder’s mental

limitations in the RFC. However, Yoder does not suggest how the mild limitations that the ALJ

found in Yoder’s understanding, remembering, and applying information, interacting with others,

concentrating, persisting, maintaining a pace, and adapting or managing herself ought to have

changed the assessment of her RFC.

Yoder cites a purported error in the opinion of the non-examining expert Dr. Toll, an

agency psychologist, but Dr. Toll’s note of a “depression screen score of 6” is consistent with the

record. Tr. 551 (PHQ-2 Depression Screen Positive. Score: 6”). Moreover, Yoder does not

suggest how Yoder’s “moderate” depression ought to change either Dr. Toll’s assessment of

Yoder’s mental impairments as “non-severe” (Tr. 58) or the ALJ’s assessment of Yoder’s RFC.

Yoder “has the burden to establish h[er] RFC,” Mabry v. Colvin, 815 F.3d 386, 390 (8th Cir. 2016),

but she has not established that a more restrictive RFC was warranted here.

Yoder also complains that Dr. Toll relied on just a handful of records in rendering her

opinion. On reply, for the first time, Yoder cites to portions of the record that she claims support

mental restrictions.

[R]ecords on 7/19/11 show increased depression. (Tr. 791). Her mood was

concerned with a sad affect. (Tr. 792). She scored 12 on the PHQ-9 (moderate

depression). (Tr. 793). In addition to medication, Yoder was referred to mental

health to start counseling. (Tr. 794). On 5/17/12, Yoder scored 12 on the PHQ-9

(moderate depression). (Tr. 771). On 7/10/12, she scored 12 on the PHQ-9

(moderate depression). (Tr. 760) On 9/17/12, Paxil helped somewhat, but she still

felt down. (Tr. 740). She scored 12 on the PHQ-9 (moderate depression). Diagnoses

included depression. Paxil and Celexa were prescribed. (Tr. 742). Yoder called the

office of P. Romero, PA, on 11/16/12. She felt everything drove her crazy, and she

was biting her husband’s head off all the time. Celexa was working at first, and she

requested a dose increase, which was done. (Tr. 736).

Doc. 14, p. 10. Yoder argues that, “[h]ad Dr. Toll had the benefit of this additional evidence, Dr.

Toll would likely have found ‘moderate’ rather than ‘mild’ limitations.” However, this evidence

does not establish that Yoder, who was working at her bowling alley around the same time, and

who subsequently worked for two years in a 30-hour-a-week job in production, was limited by her

depression.

Yoder also argues that “Dr. Toll’s opinions are not substantial evidence to support the

ALJ’s decision.” Doc. 10, p. 29. However, the ALJ did not rely on Dr. Toll’s opinion alone; she

considered Plaintiff’s allegations and treatment records as well. Tr. 15. Yoder does not challenge

the ALJ’s statement that “[t]he limited mental status examinations in the record reveal the claimant

generally presented with mostly normal findings, including normal mood and affect.” Id. (citation

omitted); see Tr. 572 (“Mood: Euthymic” and “Affect Normal” in April 2017); Tr. 898 (“PSYCH-

Oriented to time and place appropriate mood and affect” in June 2017); Tr. 962 (“Psychiatric:

Appropriate mood and affect” in May 2018); Tr. 973 (“PSYCH-Oriented to time and place

appropriate mood and affect” in August 2017)). See Chesser v. Berryhill, 858 F.3d 1161, 1167

(8th Cir. 2017) (holding that “doctors’ observations of [claimant]’s mood and affect are relevant

to the assessment of the severity of [claimant]’s symptoms”). Yoder received prescription drugs

for her depression not from a mental health specialist, but from her primary care physician. Tr. 46

Moreover, Plaintiff denied having any “[d]ifficulty doing work, taking care of things at

home, or getting along with others.” Tr. 539 (May 2017), 666 (March 2015). She indicated that

she can pay attention as long as needed, finish what she starts, follow written and spoken

instructions, and get along “very well” with authority figures, and though she does not handle

stress well, she “gets through” changes in routine. Tr. 158-60. Further, as discussed above, there

is evidence that Yoder spent multiple weekends through at least the summer of 2017 working the

counter and cooking at the bowling alley she co-owns with her husband—which suggests that

mental issues did not interfere with her ability to work. Thus, substantial evidence in the record

supports the ALJ’s conclusion that Plaintiff’s mental impairments did not impact Yoder’s ability

to work.

IV. CONCLUSION

Because the ALJ’s decision is supported by substantial evidence in the record, the Court

affirms the ALJ’s decision.

s/ Nanette K. Laughrey

NANETTE K. LAUGHREY

United States District Judge

Dated: May 11, 2020

Jefferson City, Missouri